State of Arizona v. Brady Whitman Jr. ( 2013 )

FILED BY CLERK
IN THE COURT OF APPEALS
STATE OF ARIZONA MAY 20 2013
DIVISION TWO COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-CR 2012-0006
Appellee, ) DEPARTMENT A
)
v. ) OPINION
)
BRADY WHITMAN JR., )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20110393001
Honorable Christopher C. Browning, Judge
Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz and David A. Sullivan Tucson
Attorneys for Appellee
Isabel G. Garcia, Pima County Legal Defender
By Scott A. Martin Tucson
Attorneys for Appellant
E C K E R S T R O M, Presiding Judge.
¶1 Following a jury trial, appellant Brady Whitman Jr. was convicted of four
counts of aggravated driving under the influence. The trial court sentenced him to
concurrent terms of four months’ incarceration, pursuant to A.R.S. § 28-1383(D), and
five years’ probation. Although the state has challenged the timeliness of this appeal, we
hold that a criminal defendant’s notice of appeal is timely if it is filed within twenty days
of the filing of the minute entry that contains the judgment and sentence. The present
appeal, therefore, has been properly taken. As to the merits of Whitman’s appeal, we
find no error in the court’s ruling on his suppression motion, and we consequently affirm
his convictions and disposition. We set forth the facts below as they relate to each issue
discussed.
Jurisdiction
¶2 Whitman was sentenced on December 7, 2011. The minute entry
documenting this event was filed two days later, on December 9. He filed his notice of
appeal on Wednesday, December 28.
¶3 The state argues, and Whitman originally conceded, that his notice of
appeal was filed one day after the twenty-day deadline provided by Rule 31.3, Ariz. R.
Crim. P. This argument presumes that the time for filing a notice is measured from the
date of sentencing. If this contention were true, and if no other exception applied, we
would be forced to dismiss the appeal as untimely due to a lack of jurisdiction. See State
v. Littleton, 146 Ariz. 531, 533, 707 P.2d 329, 331 (App. 1985) (“The filing of a timely
notice of appeal is essential to the exercise of jurisdiction by this court.”); see also State
v. Johnson, 78 Ariz. 211, 212-13, 277 P.2d 1020, 1021-22 (1954). Since we ordered
2
supplemental briefing on the issue, however, Whitman has changed his position and now
maintains the date the minute entry was filed, rather than the date of oral pronouncement,
is relevant to determining timeliness under Rule 31.3.
¶4 A threshold question we must decide is how to measure the time for filing a
notice of appeal. Article II, § 24 of the Arizona Constitution guarantees a criminal
defendant the right to appeal. As the right has been codified by statute, a defendant may
appeal from a “final judgment of conviction” or a “sentence . . . that is illegal or
excessive.” A.R.S. § 13-4033(A)(1), (4). Rule 31.3 provides that “[t]he notice of appeal
shall be filed with the clerk of the trial court within 20 days after the entry of judgment
and sentence.” Our rules specify that probation is included within the definition of the
word “sentence” for appellate purposes. Ariz. R. Crim. P. 26.1 cmt.; State v. Fuentes, 26
Ariz. App. 444, 446-47, 549 P.2d 224, 226-27, approved, 113 Ariz. 285, 551 P.2d 554(1976). The rules do not, however, expressly state when the “entry of judgment and
sentence” occurs. In fact, they present a daunting ambiguity regarding the time for taking
an appeal.
¶5 We interpret court rules using principles of statutory construction. Chronis
v. Steinle, 220 Ariz. 559, ¶ 6, 208 P.3d 210, 211 (2009). Our goal when construing a rule
is to give effect to the rule-makers’ intent. Id. “To ascertain that intent, we examine ‘the
rule’s context, the language used, the subject matter, the historical background, the
effects and consequences, and its spirit and purpose.’” Id., quoting State v. Aguilar, 209
Ariz. 40, ¶ 23, 97 P.3d 865, 872 (2004). We undertake this review de novo. State ex rel.
Thomas v. Newell, 221 Ariz. 112, ¶ 7, 210 P.3d 1283, 1285 (App. 2009).
3
¶6 We find substantial support in Arizona law for Whitman’s view that the
“entry” of judgment and sentence occurs, for the purposes of Rule 31.3, when the clerk of
the court files the minute entry documenting the judgment and sentence. In the past, the
time for taking an appeal was provided by statute and was measured from the “rendition”
of judgment. Ariz. Rev. Code, § 5138 (1928); Ariz. Pen. Code, § 1043 (1901). Then, as
now, the rendition of judgment occurred upon pronouncement by the judge. See Ariz. R.
Crim. P. 26.2(b), 26.10; Ariz. Rev. Code § 5104 (1928); see also Black v. Indus.
Comm’n, 83 Ariz. 121, 128, 317 P.2d 553, 557 (1957) (Struckmeyer, J., dissenting)
(“[P]ronouncement is . . . universally accepted as the rendition of judgment.”); Moulton v.
Smith, 23 Ariz. 319, 321, 203 P. 562, 563 (1922) (“[T]he term ‘rendering judgment’ . . .
mean[s] the act of the court in announcing its final determination of . . . the action.”);
State v. Madrid, 9 Ariz. App. 207, 209, 450 P.2d 719, 721 (1969) (“Rendition of
judgment is . . . pronouncement by the court of its decision.”).
¶7 Our appellate procedure changed in 1940, when our newly enacted criminal
rules measured the time for an appeal from the date that a judgment or sentence was
“entered” of record. Ariz. Code Ann., § 44-2509 (1939) (former § 420, Rules of
Criminal Procedure); see Ariz. Code Ann., §§ 44-2223, 44-2551 (1939). The “[e]ntry of
judgment is a ministerial act required to be done by the clerk of the court as distinguished
from the judicial act of pronouncing judgment.” Madrid, 9 Ariz. App. at 209, 450 P.2d at
721; accord Black, 83 Ariz. at 128-29, 317 P.2d at 557-58 (Struckmeyer, J., dissenting);
Moulton, 23 Ariz. at 321-22, 203 P. at 563; Black’s Law Dictionary 613 (9th ed. 2009)
(defining “entry of judgment” as “[t]he ministerial act of recording a court’s final
4
decision, usu. by noting it in a judgment book or civil docket”). Despite other changes to
the rules since 1940, the specific provision governing the time for taking an appeal has
continued to identify the “entry” of judgment and sentence as the operative event. See
Ariz. R. Crim. P. 31.3, 17 A.R.S. (1973); Ariz. R. Crim. P. 348, 17 A.R.S. (1956).
¶8 For much of our state’s history, therefore, we have expressed the view that
“[i]n criminal matters, the judgment is complete, valid and appealable only when it is
orally pronounced in open court [a]nd entered on the clerk’s minutes.” State v. Rendel,
18 Ariz. App. 201, 205, 501 P.2d 42, 46 (1972); see State v. Falkner, 112 Ariz. 372, 373,
542 P.2d 404, 405 (1975). More recent cases have echoed this principle. See, e.g., State
v. Bolding, 227 Ariz. 82, ¶ 13, 253 P.3d 279, 284 (App. 2011) (“A judgment of
conviction is final only when a verdict has been rendered, whether by jury or the trial
court after a bench trial, and sentence has been ‘orally pronounced in open court and
entered on the clerk’s minutes.’”), quoting State v. Glasscock, 168 Ariz. 265, 267 n.2,
812 P.2d 1083, 1085 n.2 (App. 1990); State v. Perez, 172 Ariz. 290, 292, 836 P.2d 1000,
1002 (App. 1992) (“Judgment is not final until it is orally pronounced and entered in the
court’s minutes.”).
¶9 To this day, the “entry” of judgment occurs for the purpose of determining
the timeliness of civil appeals when the document is “file-stamped by the clerk.”
Haroutunian v. Valueoptions, Inc., 218 Ariz. 541, ¶ 10, 189 P.3d 1114, 1118 (App.
2008); see Ariz. R. Civ. App. P. 8(a), 9(a); Ariz. R. Civ. P. 58(a). Similarly, in cases
involving the severance of parental rights, the “entry” of the juvenile court’s order
concludes the proceeding, A.R.S. § 8-538(A), and the time for taking an appeal is
5
consequently measured from the date “the final order is filed with the clerk.” Ariz. R. P.
Juv. Ct. 104(A). Ordinarily, the term “entry” means “[t]he inclusion or insertion of an
item, as in a record”; the word also refers to “an item entered in this way.” The American
Heritage Dictionary 596 (5th ed. 2011); see Rivera-Longoria v. Slayton, 228 Ariz. 156,
¶¶ 17-18, 264 P.3d 866, 869 (2011) (using dictionary to provide ordinary meaning of
language in rule). In these other contexts, therefore, the term “entry” retains its usual
clerical sense.
¶10 Rule 26.16(b), Ariz. R. Crim. P., provides that the “court or person
authorized by the court shall forthwith enter the exact terms of the judgment and sentence
in the court’s minutes.” A “minute entry” is defined as a “memorialization . . . either by
form or narrative of events occurring during a court proceeding,” and it includes “all
official acts occurring during the proceeding.” Ariz. R. Sup. Ct. 125(a). Accordingly,
the timeliness of criminal appeals, like ordinary civil appeals, would appear to depend on
the entry of the relevant document, meaning the date the minute entry is filed, and not the
date of judicial pronouncement.
¶11 A contrary interpretation, however, finds at least equal support in the law.
As noted, Rule 31.3 measures the time for taking an appeal from “the entry of judgment
and sentence.” Rule 26.16(a), which is entitled “Entry of Judgment and Sentence,”
provides that “[t]he judgment of conviction and the sentence thereon are complete and
valid as of the time of their oral pronouncement in open court.” The title of a rule, no
less than that of a statute, may be instructive when determining the intended meaning of
an ambiguous provision. See State v. Box, 205 Ariz. 492, ¶ 11, 73 P.3d 623, 627 (App.
6
2003). In addition, Rule 35.6, Ariz. R. Crim. P., implies that certain orders in criminal
cases will be “ent[ered] . . . in open court.” And Rule 31.8(b)(2)(iii) requires a court
reporter to provide a certified transcript of the “entry of judgment and sentence,”
suggesting such an “entry” occurs in open court during oral pronouncement.
¶12 It has long been held that the oral pronouncement of a sentence controls
over the minutes or written judgment, State v. Jefferson, 108 Ariz. 600, 601, 503 P.2d
942, 943 (1972); State v. Johnson, 108 Ariz. 116, 118, 493 P.2d 498, 500 (1972), and that
judgment and sentence are final upon oral pronouncement, with changes generally
prohibited thereafter. State v. Thomas, 142 Ariz. 201, 204, 688 P.2d 1093, 1096 (App.
1984); see Falkner, 112 Ariz. at 374, 542 P.2d at 406 (holding trial court lacks inherent
authority to modify sentence); see also Ariz. R. Crim. P. 24.3 (specifying grounds and
time for modification of sentence). So there is ample reason to regard the pronouncement
of a sentence as the final event that gives rise to an appeal.
¶13 Moreover, under our modern rules of criminal procedure, sentencing can
occur only with the defendant present in court, absent extraordinary circumstances. State
v. Fettis, 136 Ariz. 58, 664 P.2d 208 (1983); see Ariz. R. Crim. P. 26.9. The primary
reason for sentencing defendants in person is to ensure they are informed of their right to
appeal, as required by Rule 26.11. See Ariz. R. Crim. P. 26.9 cmt.; Fettis, 136 Ariz. at
59, 664 P.2d at 209. Notably, the recommended form that defendants receive regarding
this right instructs them as follows:
1. You must file a NOTICE OF APPEAL . . . within
20 days of the entry of judgment and sentence. If you do not
file a notice of appeal within 20 days you will lose your right
7
to appeal. The entry of judgment and sentence occurs at the
time of sentencing.
2. . . . You can file the notice of appeal before you
leave the courtroom on the day you are sentenced if you wish.
3. . . . [The notice of appeal and documents related to
appointment of counsel] must arrive at the clerk’s office
within 20 days after you were sentenced.
Ariz. R. Crim. P. 41, Form 23 (emphasis added). This advisory is deemed “sufficient to
meet the requirements of the[] rules,” Ariz. R. Crim. P. 41, including the requirement that
defendants receive “written notice of . . . the procedures the[y] . . . must follow to
exercise” their right of appeal. Ariz. R. Crim. P. 26.11(c).
¶14 When construed together, as rules must be, State v. Treadway, 88 Ariz. 420,
421, 357 P.2d 157, 158 (1960), these provisions suggest that for criminal appeals, the
“entry” of judgment and sentence occurs—and the time for filing a notice of appeal
begins to run—once a sentence is pronounced in open court, not when the minute entry
documenting that event is prepared or filed. We therefore find compelling support in our
law for the conclusion that “[e]ither route, sentence or suspended sentence and probation,
is final and appealable at the time of its ‘pronouncement’ by the court.” Burton v.
Superior Court, 27 Ariz. App. 797, 800, 558 P.2d 992, 995 (1977).
¶15 The foregoing demonstrates that the meaning of Rule 31.3, like past rules
of criminal procedure, is “[a]dmittedly . . . not clear.” Fettis, 136 Ariz. at 58, 664 P.2d at
208. This lack of clarity first arose in the early 1970s when our supreme court modified a
proposed rule from its advisory committee on criminal rules. The committee’s proposed
8
Rule 29.16—the draft version of what later became Rule 26.16—provided, in part, as
follows:
a. Entry of Judgment and Sentence. The notation of
the exact terms of the judgment and sentence by the clerk in
the docket shall constitute the entry of judgment and
sentence.
b. Warrant of Authority. When sentence has been
pronounced, a certified copy of the entry of judgment and
sentence shall be signed by the sentencing judge and
furnished forthwith to the appropriate officer. No other
warrant or authority is necessary to justify or require the
execution of any sentence other than death.
Arizona State Bar Committee on Criminal Law, Arizona Proposed Rules of Criminal
Procedure, at 132 (1972) (hereinafter Proposed Rules). The committee’s comment to
subsection (a) explained that “[t]he date of the entry of judgment and sentence is the
point from which the 20-day time limit for filing a notice of appeal is measured.” Id.The comment further stated: “This section is derived from Fed. R. App. P. 36.”
Proposed Rules, at 132.
¶16 By partially rejecting and modifying this proposed rule, our supreme court
may have evinced an intention to make appellate deadlines determined by
pronouncement rather than entry. See Falkner, 112 Ariz. at 374, 542 P.2d at 406 (noting
court’s rejection of proposed rule may signify disapproval thereof). But the actual
language the court adopted in the rules does not clearly demonstrate the same intent.
When the court promulgated the modern Rule 26.16(a), it provided: “The judgment of
conviction and the sentence thereon are complete and valid as of the time of their oral
pronouncement in open court.” Ariz. R. Crim. P. 26.16(a), 17 A.R.S. (1973). Thus, the
9
court removed the “shall constitute” language supplying the definition of “entry,” and it
omitted any reference to the time for filing a notice of appeal or to the federal rules. The
court also adopted, without any substantive change, the committee’s other proposed rule
(now Rule 31.3) providing the “entry” of judgment and sentence as the benchmark for
filing a notice of appeal. See Ariz. R. Crim. P. 31.3, 17 A.R.S. (1973); Proposed Rules,
Rule 34.3 at 147. The court likewise adopted the committee’s proposed form (now Form
23) advising defendants that “[t]he entry of judgment and sentence occurs at the time of
sentencing” and that they could file a notice of appeal before leaving the courtroom
where they had been sentenced. Ariz. R. Crim. P. Form 23, 17 A.R.S. (1973); see
Proposed Rules, app. Form XXVII(a). In addition, the court modified and transferred
language from the committee’s proposed Rule 29.16(a) into Rule 26.16(b), requiring
“[t]he clerk of the court” to “enter the exact terms of the judgment and sentence in the
court’s minutes.” Ariz. R. Crim. P. 26.16(b), 17 A.R.S. (1973).
¶17 With this last alteration, Rule 26.16(b) came to share the term “enter” with
Rule 31.3. The meaning and discrete functions of Rule 26.16’s subsections thereby
became obscured. And any distinguishing features of the new procedural rules became
easily overlooked. See Ariz. R. Crim. P. 325, 17 A.R.S. (1956) (“When judgment of
guilty has been rendered, the court shall pronounce sentence in open court and it shall be
entered of record.”). Confusion surrounding the “entry” of judgment and sentence was
only compounded by the later amendment of Rule 26.16(b), which allowed the court, not
merely the clerk, to undertake the ministerial duty of entering terms in the minutes. 174
Ariz. LXXXVIII (1993).
10
¶18 Despite outward appearances, Rule 26.16(b) does not actually concern
appeals. Under this provision, a signed, certified copy of the minutes containing the
judgment and sentence must be “furnished to the appropriate officer.” Id. The purpose
of this document is to provide “the evidence necessary to carry into execution any
sentence” and to allow a sheriff “to require that the prisoner be accepted by the
Department of Corrections.” Dupnik v. MacDougall, 136 Ariz. 39, 43, 664 P.2d 189, 193
(1983). In other words, the document serves as evidence of lawful custody of a
defendant and as proof of authority to execute his sentence. See generally State v. Smith,
6 Ariz. App. 393, 395-96, 433 P.2d 44, 45-46 (1967) (discussing predecessor rule and
former statutes). Yet the language of Rule 26.16(b) now suggests that the “entry” of a
judgment and sentence on the court’s “minutes,” or on some other document,1 might be
the critical event when determining the time for appeal. With enough research, perhaps,
such misperceptions may be dispelled. But the effect of the rule changes in 1973 was to
create uncertainty as to whether the “entry” of a criminal judgment and sentence means
“pronouncement,” which is precisely what entry has been distinguished from in the past,
and still is in other contexts.
¶19 This lack of clarity undermines the very purpose of Rule 31.3.
“‘[D]eterminable and speedy finality is an important constitutional and public policy
1
Here, as the state points out, the trial court signed and entered a separate
“commitment order” at sentencing that summarized Whitman’s judgment and disposition.
This document clearly was generated to comply with Rule 26.16(b). We also note that
the criminal rules expressly refer to a “sentencing order,” Ariz. R. Crim. P. 26.10(b)(6),
and a “sentencing document or order.” Ariz. R. Crim. P. 26.10(b)(5).
11
consideration in favor of defendants in criminal prosecutions.” State ex rel. Neely v.
Rodriguez, 165 Ariz. 74, 78, 796 P.2d 876, 880 (1990). The lack of clarity also impairs
the notice given to those who wish to exercise their constitutional right to appeal,
counteracting the specific purpose of Rule 26.11, as well as the general purposes of the
criminal rules. Those rules are designed to provide “simplicity in procedure, fairness in
administration, the elimination of unnecessary delay and expense, and to protect the
fundamental rights of the individual.” Ariz. R. Crim. P. 1.2.
¶20 As our dissenting colleague points out, and as our above analysis confirms,
there is a compelling argument for interpreting the present rules as requiring a notice of
appeal to be filed within twenty days of the pronouncement of sentence, not the filing of
a sentencing minute entry. Yet the fact remains that the language of the respective rules
points in different directions.2 While we certainly could construe the 1973 criminal rules
and forms as adopting a unique meaning of “entry” that departs from the ordinary and
historic meaning of the term, doing so would bar many prompt appeals, such as the one
here; it would leave in place a legal trap; and it would needlessly disrupt our court system
with requests for delayed appeals under Rule 32.1(f), Ariz. R. Crim. P. We find no
2
By maintaining the rules and forms are “plain” and “unambiguous,” infra ¶ 41,
we believe the dissent fails to acknowledge that the term “entry” (or its equivalent verb
“enter”) is used in two distinct senses in the criminal rules. Entry is distinguished from
pronouncement in Rule 26.16(b) and refers, as it ordinarily does, to the act of placing
something in a document. See Ariz. R. Crim. P. 26.16(b) (“The court . . . shall forthwith
enter the exact terms of the judgment and sentence in the court’s minutes.”); American
Heritage Dictionary 596 (illustrating term “entry” with example “an entry in the ledger”)
(emphasis omitted). In Rule 31.8(b)(2)(iii), by contrast, entry seems to be equated with
oral pronouncement. Understanding the meaning of “entry” in Rule 31.3, therefore,
requires more than a grasp of the English language; it requires that a person interpret and
harmonize our various rules and forms.
12
evidence that our supreme court intended such disruption or delay, nor do we believe the
court intended to penalize defendants or even diligent attorneys for their failure to discern
the meaning of confusing and seemingly contradictory rules and forms. See Ariz. R.
Crim. P. 1.2 (stating rules “intended to provide for the just, speedy determination of every
criminal proceeding”); cf. In re Maricopa Cnty. Juv. Action No. JS-8441, 174 Ariz. 341,
343, 849 P.2d 1371, 1373 (1992) (reinstating appeal on grounds of “fundamental
fairness” when court procedures “not intuitively obvious to general users of the system”);
State v. Schroeder, 95 Ariz. 255, 259, 389 P.2d 255, 257 (1964) (observing that under
certain circumstances, “dismissal for slight delay in filing criminal appeals seems
inconsonant with sound policy and fundamental justice”).
¶21 To be sure, the optimal solution to this problem would come from our
supreme court exercising its rule-making authority and amending the rules to remove all
ambiguity concerning the time for taking a criminal appeal. See Craig v. Craig, 227
Ariz. 105, ¶ 15, 253 P.3d 624, 626 (2011) (noting significant changes to procedural rules
should occur by rule-making rather than decision). “In the best of all worlds, all
judgments or orders from which appeals lie in any kind of case would be clear and free of
confusion.” Maricopa Cnty. No. JS-8441, 174 Ariz. at 342-43, 849 P.2d at 1372-73. In
the meantime, however, we take guidance in resolving this problem from the precedent
set by State v. Brown (Brown I), 23 Ariz. App. 225, 532 P.2d 167 (1975), which our
supreme court affirmed and approved in State v. Brown (Brown II), 112 Ariz. 29, 32, 536
P.2d 1047, 1050 (1975).
13
¶22 There, the court faced the question of whether defendants who had been
sentenced after revocation of probation were entitled to appeal. Brown II, 112 Ariz. at
30, 536 P.2d at 1048. The court described the relevant rules as being unclear due to a
likely “‘inadvertent comment holdover’” in the overhauled 1973 rules, which made the
defendant “‘face[] . . . a confusing situation’” regarding his appellate rights. Id. at 31,
536 P.2d at 1049, quoting Brown I, 23 Ariz. App. at 228, 532 P.2d at 170. Ultimately,
the court gave the defendant the benefit of this confusion, holding “‘both remedies[,
appeal or post-conviction relief,] should remain alternatively available to him’” until
amendments to the rules could take effect and remove the inconsistency. Id., quoting
Brown I, 23 Ariz. App. at 228, 532 P.2d at 170.
¶23 As in Brown, we hold that under Rule 31.3, the timeliness of a criminal
defendant’s appeal may be measured from the date when the minute entry containing the
judgment and sentence was filed.3 Cf. Maricopa Cnty. No. JS-8441, 174 Ariz. at 342-43,
849 P.2d at 1372-73 (measuring “entry” of severance order from later date filed by clerk).
Because Whitman’s appeal is timely under this standard, we need not, and do not,
address the question he originally raised concerning the application of the mailing
provision in Rule 1.3(a), Ariz. R. Crim. P.
¶24 To the extent our dissenting colleague disagrees with our basic proposition
that “‘well-informed persons may reasonably disagree as to [the] meaning’” of the rules
of criminal procedure on the question of the time for taking an appeal, Higginbottom v.
3
In so holding, we do not suggest a defendant must wait for a sentencing minute
entry to file a notice of appeal. An appeal taken within twenty days from the date of
sentencing is timely under Rule 31.3, as Form 23 indicates.
14
State, 203 Ariz. 139, ¶ 13, 51 P.3d 972, 975 (App. 2002), quoting 2A Norman J. Singer,
Statutes and Statutory Construction § 45.02, at 17 (6th ed. rev. 2000), we believe it
necessary to further discuss some of the dissent’s reasoning concerning Form 23, the
supreme court’s rule changes in 1973, and Rule 26.16(a).
¶25 Although the dissent suggests that our supreme court has, through Rule 41,
essentially ratified its interpretation of Form 23 and defined “entry” as “pronouncement,”
see infra ¶¶ 55-56, this argument overlooks that the language of Form 23 came from the
1972 advisory committee. See Proposed Rules, app. Form XXVII(a). As noted above,
the committee’s proposed rules unambiguously measured the time for an appeal from the
clerical entry of judgment and sentence. Proposed Rules, Rule 29.16(a) and cmt. at 132.
Thus, the form could not have been intended by its drafters to alter the then-traditional
manner of counting the time for filing a notice of appeal. Although the committee’s
proposed form advised defendants “[t]he entry of judgment and sentence occurs at . . .
sentencing” and that they could “file the notice of appeal before . . . leav[ing] the
courtroom,” Proposed Rules, app. Form XXVII(a), this does not necessarily indicate any
inconsistency on the committee’s part regarding the time for taking an appeal; it simply
reflects an assumption that clerical entry would follow the oral pronouncement
“forthwith” and would likely occur by the time the sentencing hearing had concluded.
Proposed Rules, Rule 29.16(b) at 132. Indeed, the rules elsewhere show that a similar
advisory was already a part of the superior courts’ “current practice.” Ariz. R. Crim. P.
26.11 cmt. And to the extent that practice conformed to the express rules then in
existence, it would entail informing defendants that the time for an appeal was measured
15
from the entry of the judgment upon the minutes. See Ariz. R. Crim. P. 325, 348, 17
A.R.S. (1956). Accordingly, Form 23, when promulgated, did not necessarily represent
any departure from prior appellate procedure, and it is not especially probative on the
question here.4
¶26 Moreover, the 1973 rule changes, to the extent they amended the committee
proposals, do not necessarily convey the meaning the dissent presumes. Although it
could well be that our high court intended Rule 26.16(a) to provide a definition of “entry
of judgment and sentence” to be used throughout the rules of criminal procedure for
timing purposes, it is also plausible that the court intended Rule 26.16(a) to address only
the distinct topic of the “complete[ness] and valid[ity]” of a sentence upon oral
pronouncement, as the text of this provision indicates. By changing the advisory
committee’s proposed rule and amending the comments thereto, the supreme court could
have been motivated exclusively by an intent to (1) provide finality and prohibit
modifications of a sentence after oral pronouncement, which was one of the court’s
express goals noted in Falkner, 112 Ariz. at 374, 542 P.2d at 406; and (2) ensure that the
validity of a sentence could not be questioned on technical grounds. See Moore v. State,
55 Ariz. 43, 47-48, 97 P.2d 925, 927 (1940) (rejecting challenge to judgment and
sentence based on lack of signed judgment entered contemporaneously with sentence);
4
We further note that Rule 41 was adopted by our supreme court in 2007, see Ariz.
Sup. Ct. Order No. R-03-0029 (Sept. 25, 2007), correcting Ariz. R. Sup. Ct. Order No. R-
03-0029 (Sept. 5, 2007), decades after Form 23 originally was promulgated. Insofar as
the rule abrogated and reenacted the prior Form 23 with only minor stylistic changes
related to noncapital sentencing, see Ariz. Sup. Ct. Order No. R-03-0029, 1, 5 (Sept. 25,
2007), Rule 41 does not shed any light on the meaning of the 1973 rule changes.
16
Smith, 6 Ariz. App. at 394-95, 433 P.2d at 45-46 (rejecting claims by escaped prisoners
“that no valid sentences were in existence” due to lack of signed sentencing documents).
Thus, this construction of the supreme court’s intent in modifying the committee’s
original language finds support not only in the supreme court’s own subsequent
description of its goals, see Falkner, 112 Ariz. at 374, 542 P.2d at 406, but also in the
language of the rule, as amended, which expressly addresses only completeness and
validity. The language of Rule 26.16 is silent on the question of appellate timing.
¶27 The dissent correctly observes that the supreme court’s amendments to the
committee’s recommendations also included deleting a portion of the comment that had
expressly addressed the topic of appellate timing. Infra ¶ 56. The dissent therefore
draws the inference that the supreme court necessarily intended to reject the
understanding of appellate timing conveyed by the committee’s comment: that timing
should run from the clerical act of entry. See id. But the dissent overlooks that there are
other equally plausible inferences to be drawn from the deletion and that edits to a
comment do not necessarily convey disagreement with the content of the deleted
material. For instance, the court might have deleted the comment simply because, given
its edits to the language of Rule 26.16(a) itself, that provision no longer related to
appellate timing. The court also might have removed the comment precisely to prevent
Rule 26.16(a) from being understood as addressing appellate timing. Moreover, the
change might have been motivated to discourage comparisons to federal law of any kind;
the court might have viewed federal law as redundant or irrelevant given that Rule 31.3
facially conformed with Arizona’s own long-standing approach to measuring time.
17
¶28 Perhaps most importantly, had the supreme court formulated a clear intent
to depart from Arizona’s established practice of counting time from the clerical entry of
judgment, it seems unlikely the court would have attempted to convey that intent by
deleting a committee comment—an action that would not be apparent to litigants either
from the adopted text or comments. Instead, the court left Rule 31.3—the provision that
expressly addresses appellate timing—unaltered from the committee’s draft. And, in the
comment to Rule 31.3, the court acknowledged only one change from the prior Rule 348:
a reduction in the time for appeal from sixty to twenty days. Thus, to the extent we focus
on the content of comments to the rules, the court’s intentions remain ambiguous.
¶29 Although the dissent also looks to the heading of Rule 26.16(a) as evidence
that it serves as a definitional provision, infra ¶¶ 46-47, this argument essentially
concedes our point regarding ambiguity. We have said that “section headings, notes, and
comments do not constitute substantive portions of the Rules of Criminal Procedure.”
State v. Bernecker, 164 Ariz. 200, 201, 791 P.2d 1083, 1084 (App. 1990). Furthermore,
it is a general principle of construction that “headings and titles are not meant to take the
place of the detailed provisions of the text,” and they are to be used by courts “[f]or
interpretative purposes . . . only when they shed light on some ambiguous word or
phrase.” Bhd. of R.R. Trainmen v. Balt. & O.R. Co., 331 U.S. 519, 529 (1947). Had our
supreme court intended to change our then-traditional procedure for measuring the time
for appeal, and had the court intended to define “entry” in a way that is inconsistent with
past and present uses of the term, we believe the court would have done so in a clear
definitional provision of the type exhibited in Rule 26.1. Moreover, had the court
18
intended for Rule 26.16(a) to constitute a comprehensive definition of the phrase “entry
of judgment” applicable to all sections of the rules of criminal procedure, we think it
unlikely that it would have described entry of judgment in its clerical sense in Rule
26.16(b).
¶30 But rather than engaging in “speculation” about the reason for the
ambiguity in the rules—or the supreme court’s likely intention with the 1973 changes—
we simply follow the precedent set by Brown I, 23 Ariz. App. at 228, 532 P.2d at 170,
and approved by our supreme court in Brown II, 112 Ariz. at 32, 536 P.2d at 1050. As
with the Brown decisions, we anticipate that our opinion today will result in functional
efficiency rather than chaos within the judicial system. Far from disregarding the
undisputed authority of our supreme court to promulgate rules, we tread lightly in
attempting to divine the supreme court’s intent when such intent has not been clearly
expressed.
Motion to Suppress
¶31 Turning to the merits of Whitman’s appeal, he argues the trial court erred in
denying his motion to suppress because his automobile stop was unconstitutional under
the Fourth Amendment to the United States Constitution. “When reviewing a
suppression order entered after a hearing, we consider only the evidence presented at the
hearing, which we view in the light most favorable to upholding the trial court’s order.”
State v. Carlson, 228 Ariz. 343, ¶ 2, 266 P.3d 369, 370 (App. 2011). Absent an abuse of
discretion, we accept a trial court’s factual findings, State v. Fikes, 228 Ariz. 389, ¶ 3,
267 P.3d 1181, 1182 (App. 2011), but we review de novo its ultimate legal conclusion
19
regarding the propriety of a stop. State v. Altieri, 191 Ariz. 1, ¶ 7, 951 P.2d 866, 867
(1997); State v. Livingston, 206 Ariz. 145, ¶ 3, 75 P.3d 1103, 1104 (App. 2003).
¶32 “[T]he violation of a traffic law provides sufficient grounds to stop a
vehicle.” State v. Acosta, 166 Ariz. 254, 257, 801 P.2d 489, 492 (App. 1990). In the
state’s responsive motion below, it presented three alternative bases for finding the traffic
stop lawful: Whitman had a malfunctioning stop or signal light, see A.R.S. §§ 28-
939(A), (B), 28-981(A)(1); he had failed to come to a complete stop at a stop sign, see
A.R.S. §§ 28-644(A)(1), 28-855(B); and he was driving in the middle of the road, see
A.R.S. § 28-721.
¶33 The police officer who had stopped Whitman offered testimony supporting
all three of these allegations. The officer testified, however, that only the broken taillight
and the failure to properly observe the stop sign were the violations that had caused him
to perform the traffic stop. Whitman presented evidence to refute these two specific
traffic violations listed by the officer, but he offered no evidence to rebut the testimony
that he had driven improperly in the middle of the road.
¶34 Section 28-721(A) provides that “[o]n all roadways of sufficient width, a
person shall drive a vehicle on the right half of the roadway.” The police officer here
testified that the roadway in question had “room for a car to get [by] on each side,” but,
because Whitman was driving “in the middle of the road,” an oncoming car “wouldn’t be
able to actually pass the vehicle.” The trial court credited this uncontroverted testimony
and determined this violation provided a sufficient basis for the stop. The record thus
20
supports the court’s factual determination and, consequently, its ruling on the motion to
suppress.
¶35 Whitman nevertheless argues that the officer did not actually stop him for a
violation of § 28-721, and he reasons that because he was not stopped for violating this
statute, “the trial court improperly considered that violation to be a justification for the
stop.” We reject this argument.
¶36 “‘[T]he Fourth Amendment requires only reasonable suspicion in the
context of investigative traffic stops.’” State v. Starr, 222 Ariz. 65, ¶ 12, 213 P.3d 214,
218 (App. 2009), quoting United States v. Lopez-Soto, 205 F.3d 1101, 1105 (9th Cir.
2000). “Fourth Amendment reasonableness ‘is predominantly an objective inquiry,’”
Ashcroft v. al-Kidd, ___ U.S. ___, ___, 131 S. Ct. 2074, 2080 (2011), quoting City of
Indianapolis v. Edmond, 531 U.S. 32, 47 (2000), that “ask[s] whether ‘the circumstances,
viewed objectively, justify [the challenged] action.’” Id., quoting Scott v. United States,
436 U.S. 128, 138 (1978) (second alteration in al-Kidd). The analysis “ordinarily
involves ‘an objective assessment of the officer’s actions in light of the facts and
circumstances confronting him at the time.’” State v. Jeney, 163 Ariz. 293, 295, 787 P.2d
1089, 1091 (App. 1989), quoting Maryland v. Macon, 472 U.S. 463, 470 (1985). For
traffic stops, the test does not depend “on the actual motivations of the individual officers
involved,” Whren v. United States, 517 U.S. 806, 813 (1996), but on whether a
reasonable officer in the same circumstances could have stopped the vehicle for the
suspected violation. See id. at 808. Hence, “a stop is not invalid if there exists a valid,
21
objective reason to make the stop.” State v. Swanson, 172 Ariz. 579, 582, 838 P.2d 1340,
1343 (App. 1992).
¶37 Contrary to Whitman’s argument, a traffic stop that is objectively lawful is
not rendered illegal simply because a police officer fails to appreciate or recite the legal
ground that supports the action. See, e.g., United States v. Willis, 431 F.3d 709, 716-17
(9th Cir. 2005) (upholding stop when officer issued no traffic citations but “could have
relied on the traffic violation as a justification for stopping” defendant). A trial court
properly may consider all the facts known to an officer when making its independent
legal determination as to whether he engaged in “objectively justifiable behavior under
the Fourth Amendment.” Whren, 517 U.S. at 812. Accordingly, the trial court here
properly upheld Whitman’s stop based on an observed traffic violation. Although an
officer’s express basis for a traffic stop may be relevant and probative in regard to certain
factual questions, a court’s constitutional analysis does not depend on the officer’s actual
or express reasons for the stop. See Livingston, 206 Ariz. 145, ¶ 13, 75 P.3d at 1106.
¶38 Furthermore, Whitman’s suppression argument finds little support in the
rationale behind the exclusionary rule, which aims to deter unlawful police conduct. See
United States v. Calandra, 414 U.S. 338, 347 (1974); State v. Pike, 113 Ariz. 511, 514,
557 P.2d 1068, 1071 (1976); State v. Washington, 120 Ariz. 229, 232, 585 P.2d 249, 252
(App. 1978). “The exclusionary rule was designed to deter police misconduct, not
objectively reasonable law enforcement activity.” United States v. Cannon, 264 F.3d
875, 880 (9th Cir. 2001). Excluding evidence based upon an officer’s failure to recite a
proper basis for an otherwise lawful stop certainly would provide an incentive for officers
22
to know the law and to be thorough and precise when formulating their grounds for a
stop. This, in turn, could serve as a prophylactic measure against the constitutional
violations that might result from careless police practice. But stretching the exclusionary
rule this far would impose a heavy practical burden on law enforcement, and its minimal
deterrent effect would come at a high social cost of providing a windfall to guilty
defendants. See Stone v. Powell, 428 U.S. 465, 490-91 (1976).
Disposition
¶39 In sum, we conclude Whitman timely filed his notice of appeal, but we find
no error in the trial court’s denial of his motion to suppress. We therefore affirm his
convictions and disposition.
/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Presiding Judge
CONCURRING:
/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge
M I L L E R, Judge, dissenting.
¶40 I respectfully dissent from the conclusion that Whitman timely filed his
notice of appeal. Although I would join in the majority’s conclusion that the trial court
did not err in denying the motion to suppress, I must dissent because I conclude that the
pertinent rules are not ambiguous.
23
¶41 The jurisdictional issue is whether the clause “entry of judgment and
sentence” is ambiguous when considered in context of the rules of criminal procedure,
specifically including Rule 26.16(a), Ariz. R. Crim. P. But the rule’s plain statement that
judgment and sentence “are complete and valid as of the time of their oral
pronouncement in open court,” makes the clause unambiguous. Ariz. R.
Crim. P. 26.16(a). Entry of judgment and sentence occurs at the time of sentencing and it
starts the clock for filing a notice of appeal. See Ariz. R. Crim. P. 26.16(a), 31.3, 41,
Form 23.
¶42 Equally important, I conclude the majority’s opinion effectively adopts the
federal rule that the Arizona Supreme Court explicitly rejected in 1973. Compare Ariz.
R. Crim. P. 26.16(a) and cmt. with Arizona State Bar Committee on Criminal Law,
Arizona Proposed Rules of Criminal Procedure, at 132 (1972) (hereinafter Proposed
Rules). Additionally, construing the clause in Rule 31.3, Ariz. R. Crim. P., as directed by
the majority will cause conflicts and confusion in the interpretation and application of
other rules of criminal procedure.
¶43 I would dismiss the appeal for lack of jurisdiction.
Is there ambiguity in the meaning of “entry of judgment and sentence”?
¶44 The majority finds ambiguity because Rule 31.3 does not expressly state
when “entry of judgment and sentence” occurs. See supra ¶ 4. From that starting point,
the majority concludes that Rule 31.3 “requires more than a grasp of the English
language; it requires that a person interpret and harmonize our various rules and forms.”
Supra ¶ 20 note 2. This conclusion does not give sufficient weight to the use of the
24
clause throughout the rules; it unduly relies upon dicta from several cases; and, it does
not accept our supreme court’s rule-making decisions made in 1973 and re-affirmed in
2008.
¶45 The primary goal of rule interpretation is to discern and give effect to the
intent of our supreme court in promulgating a given rule. Chronis v. Steinle, 220 Ariz.
559, ¶ 6, 208 P.3d 210, 211 (2009). Intent includes its effects and purpose, and the
context in which the rule is used. State v. Aguilar, 209 Ariz. 40, ¶ 23, 97 P.3d 865, 872
(2004). These rules “are designed to protect the fundamental rights of the individual and
to promote simplicity in procedure while eliminating unnecessary delay and expense.”
State v. Gomez, 27 Ariz. App. 248, 251, 553 P.2d 1233, 1236 (1976).
¶46 Even when a rule is clear, we may examine the rule in the context of other
rules and use headings for guidance. Cf. Pleak v. Entrada Prop. Owners’ Ass’n., 205
Ariz. 471, ¶¶ 7-8, 73 P.3d 602, 605 (App. 2003) (interpreting subsections to conclude
statute governing cities does not apply to unincorporated areas). Thus, we must read
Rule 31.3 in the context of other rules of criminal procedure. State ex rel. Larson v.
Farley, 106 Ariz. 119, 122, 471 P.2d 731, 734 (1970) (related provisions must be
construed as though they constituted one law). When considered in the context of the
rules as a whole, the definition of entry of judgment and sentence is not limited to
Rule 31. See Ariz. R. Crim. P. 24.2, 24.3, 30.2, 32.4(a).
25
¶47 The issue is definition and timing. Although the clause “entry of judgment
and sentence” appears in eight different rules,5 it generally is used in the same manner as
Rule 31.3: it marks the start of a time period. It is only Rule 26.16, however, that
presents the clause in its heading to designate its introduction and definition:
Rule 26.16 Entry of judgment and sentence; warrant of
authority to execute sentence
a. Entry of Judgment and Sentence. The judgment of
conviction and the sentence thereon are complete and
valid as of the time of their oral pronouncement in open
court.
Most important, the text of the rule specifies when judgment and sentence are complete:
“as of the time of their oral pronouncement in open court.” Id.¶48 An equally clear statement of entry of judgment and sentence is contained
in Form 23. Ariz. R. Crim. P. 41, Form 23. It eliminates legal nominalizations, such as
“oral pronouncement,” that might not be understood by a lay person and replaces them
with a universally understood clause: “[entry] occurs at the time of sentencing.”
¶49 The majority acknowledges that the specific admonition in Form 23
directly contradicts its reading of Rule 26.16, but dismisses its significance as an atavism
from 1972. Supra ¶ 25. The recent rules petitions and supreme court activity regarding
Form 23 do not support this conclusion; rather, they underscore the close scrutiny our
supreme court has given to this area.
5
Ariz. R. Crim. P. 24.2, 24.3, 26.16, 30.2, 31.2(b), 31.3, 31.8(b)(2)(iii), and
32.4(a).
26
¶50 In 2003, the Limited Jurisdiction Committee recommended deletion of the
forms accompanying the rules of criminal procedure. See Amended Petition to Amend
Forms Appended to the Rules of Criminal Procedure (“Amended Petition”), No. R-03-
0029 (filed Nov. 1, 2006); Arizona Supreme Court Rules Agenda (June 1, 2004). The
Arizona Supreme Court deferred action on the petition and created the Criminal Rules
Review Committee to review all of the forms to determine if they should be updated.
Amended Petition at 2; Arizona Supreme Court Minutes (June 1, 2004). The Committee
was comprised of trial judges and criminal law specialists. Amended Petition,
Attachment I. After an extensive review and revision of the forms, the Committee
recommended retention of the forms for statewide use. See id. Of particular
significance, Form 23 underwent changes pertaining to capital sentences. Id. at 15 and
Attachment II. The Committee specifically recommended against “other substantive
changes” to Form 23. Id. at 15. Certainly, if the Committee believed that the critical
sentence—judgment “occurs at the time of sentencing”—was an incorrect statement of
law or confusing and contradictory, it would have alerted the supreme court and made an
appropriate recommendation. The Committee’s recommendations also were reviewed
and commented upon by other interested parties, none of whom flagged the sentence as a
problem.6 Finally, the supreme court would have closely reviewed Form 23 as part of its
rules petition review process. The supreme court affirmed its intent in 2008, through
6
Arizona Supreme Court Rules Comment Forum, R-03-0029 Petition to Amend
the Forms Appended to the Rules of Criminal Procedure, available at
http://azdnn.dnnmax.com/AZSupremeCourtMain/AZCourtRulesMain/CourtRulesForum
Main/CourtRulesForum/tabid/91/view/topic/forumid/3/postid/226/Default.aspx (last
visited May 2, 2013).
27
Rule 40 and Form 23, that “entry of judgment and sentence occurs at the time of
sentencing.” Order Promulgating Rule 40, Ariz. R. Crim. P., and Amending the Forms
Appended to Ariz. R. Crim. P. (Sept. 5, 2007) amended by Order Correcting a Previous
Order Promulgating Rule 40 (Sept. 25, 2007) (changing Rule 40 to Rule 41).
¶51 In summary on this point, I do not believe it necessary to look beyond
Rule 26.16(a) and Form 23 to determine when the time for appeal begins to run. See
Xavier R. v. Joseph R., 230 Ariz. 96, ¶ 3, 280 P.3d 640, 642 (App. 2012) (plain language
of rule best reflection of supreme court’s intent in promulgating it; unless rule unclear or
ambiguous or result of giving effect to plain language would be absurd, reviewing court
“will not employ principles of construction in order to determine the meaning of the rule
and the supreme court’s intent in promulgating it”). Moreover, the majority’s reliance on
historical background cannot support or insert a finding of ambiguity where the language
itself is unambiguous. See State ex rel. Corbin v. Pickrell, 136 Ariz. 589, 592, 667 P.2d
1304, 1307 (1983) (prior language of consumer fraud act irrelevant where amended act
unambiguous). But, even assuming for the purpose of engaging the majority’s argument
that the plain language of the rules is insufficient and the admonishment in Form 23
contradicts the rules, neither the 1973 historical changes nor dicta in several post-1973
cases support a conclusion that the Arizona Supreme Court adopted the federal rule.
The history of the pertinent rules shows the intent of the Arizona Supreme Court to
mark the time to appeal from sentencing.
¶52 The majority is correct that Arizona law before 1973 required oral
pronouncement and written entry in the court minutes before the case could be appealed.
28
See, e.g., State v. Johnson, 108 Ariz. 116, 118, 493 P.2d 498, 500 (1972); Ariz. R. Crim.
P. 325(B), 17 A.R.S. (1956) (“When judgment of guilty has been rendered, the court shall
pronounce sentence in open court and it shall be entered of record.”). I believe the
majority errs, however, when it concludes that more recent criminal cases follow the pre-
1973 law to require both oral pronouncement and entry in the clerk’s minutes. See supra
¶ 8. The language quoted by the majority in each case is dicta that copied wholesale the
language of pre-1973 law. See, e.g., State v. Bolding, 227 Ariz. 82, ¶ 13, 253 P.3d 279,
284 (App. 2011), quoting State v. Glasscock, 168 Ariz. 265, 267 n.2, 812 P.2d 1083,
1085 n.2 (App. 1990), relying on Johnson, 108 Ariz. at 118, 493 P.2d at 500, and State v.
Perez, 172 Ariz. 290, 292, 836 P.2d 1000, 1002 (App. 1992), relying on Johnson, 108
Ariz. at 118, 493 P.2d at 500. Each of the post-1973 cases failed to note the dramatic
restructuring of the rules of criminal procedure in 1973 and illustrates problems caused
by uncritical citation to pre-1973 case law.
¶53 More important, rather than suggesting an ambiguity as the majority argues,
the historical context of the rules shows the intent of our supreme court. In 1973, the
court abrogated all 367 rules of criminal procedure, replacing them with the current rules.
Promulgating Order, 17 A.R.S. Rules of Criminal Procedure at XXX (1973). The 1973
rules were proposed by an Advisory Committee consisting of criminal law practitioners
and academics from across the state. Proposed Rules, Committee Roster; John M.
Greacen, The Proposed New Rules of Criminal Procedure—A Preview of The State Bar
Committee’s Convention Presentation, 7 Ariz. B.J., 11, 11 (Spring 1972). The Advisory
Committee was assisted by three full-time attorneys working under a federal grant.
29
Graecen, supra, at 11. The mission of the Advisory Committee was to start “from
scratch” to reorganize and to make “substantial changes in the nature of the criminal
process.” Id. One set of changes involved sentencing, admonishment of appellate rights,
and time for appeals. Id. at 17.
¶54 Before 1973, a defendant generally was not required to be present at
sentencing. See Ariz. R. Crim. P. 235, 17 A.R.S. (1956). But Rule 26.9 mandates the
presence of the defendant for sentencing. See also Ariz. R. Crim. P. 26.9, 17 A.R.S.
(1973). The comment to the rule explains the change was made “because of essential
warnings and information regarding appeal required to be given after sentence is
pronounced.” Ariz. R. Crim. P. 26.9 cmt. Rule 26.11 describes the specific information
and warnings to be conveyed to the defendant by the judge. The rule also requires the
court to provide the defendant with a written notice of appeal using a form incorporated
into the rules. See Ariz. R. Crim. P. 26.11(c) and cmt. Form 23, added in 1973, provides
in relevant part:
You have a right to appeal from a final judgment of
conviction, from an order denying a post-trial motion, or from
a sentence which is illegal or excessive.
In order to exercise this right:
1. You must file a NOTICE OF APPEAL (Form
XXIV(a)) within 20 DAYS of the entry of
judgment and sentence. If you do not file a notice
of appeal within 20 days you will lose your right to
appeal. The entry of judgment and sentence occurs
at the time of sentencing. If you do not appeal you
may not ever have another opportunity to have any
errors made in this case corrected by another court.
30
Ariz. R. Crim. P., 17 A.R.S. (1973) (citations omitted).
¶55 Rule 26.11 and Form 23 were new. They were not derived from the 1956
Rules. The comment to Rule 26.11 observed that the duties imposed on trial judges and
the information in the form were drawn from “current practice,” and were intended to
convey information covered in Rules 6 (right to counsel), 31 (right to appeal), and 32
(post-conviction relief).7 Ariz. R. Crim. P. 26.11 cmt., 17 A.R.S. (1973). This was a
significant change that directly involved the defendant. The Rules of Criminal Procedure
provided a plain statement of the law about a right and duty that did not require a lawyer,
legal training, or access to law books to understand. Compare Ariz. R. Crim. P. 325, 327,
330, and 348, 17 A.R.S. (1956), with Ariz. R. Crim. P. 26.11, 26.16, and 31.3, 17 A.R.S.
(1973). This plain statement resolved in 1973 the question posed by the majority today.
See Ariz. R. Crim. P. 41, Form 23; see also, Ariz. R. Crim. P. Form 23, 17 A.R.S. (1973).
¶56 Equally telling, our supreme court rejected the Advisory Committee
recommendation to adopt the federal rule regarding entry of judgment and sentence. The
Advisory Committee suggested that the “notation of the exact terms of the judgment and
sentence by the clerk in the docket shall constitute the entry of judgment and sentence.”
Proposed Rules, at 132. The proposed comment had explained: “This section is derived
from Fed. R. App. P. 36. The date of the entry of judgment and sentence is the point
from which the 20-day time limit for filing a notice of appeal is measured. See
7
This comment also contradicts the majority’s assertion that Rule 26 does not
concern appeals. See supra ¶ 18. To the contrary, it anticipates that the sentencing court
and written materials must inform the defendant about appellate rights, procedures, and
deadlines.
31
Rule [31.3].” Id. Significantly, our supreme court rejected the proposed language and
eliminated the comment. Compare Proposed Rules, Rule 29.16, with Rule 26.16, 17
A.R.S. (1973). The court rejected the federal rule and deliberately chose the language the
rule has in its current form. By effectively adopting the long-existing federal rule,8 the
majority overrules the decision of our supreme court rejecting that rule. This court lacks
such authority. See Sell v. Gama, 231 Ariz. 323, ¶ 31, 295 P.3d 421, 428 (2012) (prior
decisions of highest court cannot be disaffirmed by a lower court).
¶57 In response to the observation that its holding adopts many aspects, but not
all,9 of the federal rule, the majority argues our supreme court may have been concerned
about sentence finality rather than appellate timing. For instance, the majority cites State
v. Falkner, 112 Ariz. 372, 373, 542 P.2d 404, 405 (1975), for the proposition that the
1973 changes were a complement to a general preference for finality.10 Falkner is
inapposite because it neither relies on nor references Rule 26.16 or Rule 31.3. Moreover,
to the extent Falkner addresses judgment being complete only upon entry of the clerk’s
minutes, it observed that the principle was good law “[p]rior to the passage of the 1973
8
See Fed. R. App. P. 36 (“A judgment is entered when it is noted on the docket.”)
and 4(b) (“In a criminal case, a defendant’s notice of appeal must be filed . . . after . . . the
entry of . . . judgment . . . .”).
9
Rule 4(b), Fed. R. App. P., also addresses premature notices filed before entry of
judgment or a ruling on a time-extending motion, affirmation of trial court jurisdiction,
and good cause extensions of time for failure to file a timely notice.
10
Although the majority also employs State v. Brown, 23 Ariz. App. 225, 532 P.2d
167 (1975), in various contexts, it has limited value on the principal issue because it was
clear soon after the 1973 changes that certain comments were in conflict with the
language of other rules and were causing confusion. See State v. Brown, 112 Ariz. 29,
31, 536 P.2d 1047, 1049 (1975) (observing that conflicting comments were in the process
of being deleted).
32
Rules.” Id. at 373, citing Johnson, 108 Ariz. at 118, 493 P.2d at 500, and State v.
Dowthard, 92 Ariz. 44, 373 P.2d 357 (1962). If Johnson and Dowthard remained good
law, our supreme court would not have qualified their precedential value as being limited
to the law in effect prior to the enactment of the 1973 changes. Falkner makes the clear
point, albeit in dicta, that entry of judgment and sentence had a different meaning prior to
1973.
Does interpreting “entry of judgment and sentence” to mean the same as “filing of
the minute entry” cause conflicts or confusion with respect to other rules of criminal
procedure?
¶58 The majority interprets the phrase “entry of judgment and sentence” in
Rule 31.3 to focus on the signed minute entry rather than the oral pronouncements at the
sentencing hearing. In certain circumstances, however, such an interpretation may result
in confusion and create future problems. For instance, Rule 31.8(b)(2)(iii) requires the
court reporter to transcribe the “entry of judgment and sentence.” Under the majority’s
interpretation, this would mean the court reporter must transcribe the minute entry.
Clearly, the intent of the rule is to require a transcription of the sentencing hearing, not
the minute entry.
¶59 The majority’s interpretation also causes potential confusion for trial judges
and defendants regarding the admonishment that must be given under Rule 26.11. Will
the trial judge be required to explain that the twenty-day period begins to run from the
filing of a minute entry on some unknown date in the future? Will the defendant fail to
receive timely notice of that filing because of his or her transfer from jail to prison?
Contrast the complexity of an admonishment the majority’s holding will require with the
33
trial judge’s warning to Whitman: “You have the right to file an appeal because you had
a trial. So you have to do that within 20 days.”
¶60 Finally, the majority’s interpretation plainly conflicts with the statement in
Form 23 that the “entry of judgment and sentence occurs at the time of sentencing.”
Should trial courts amend their Form 23 to conform to the holding in this case? As
discussed earlier, supra ¶ 56, I do not believe a lower court has authority to invalidate a
criminal procedure form that our supreme court has found “sufficient to meet the
requirements of these rules.” See Ariz. R. Crim. P. 41.
Would defendants be unfairly prejudiced if “entry of judgment and sentence”
means the date of sentencing?
¶61 My colleagues’ conclusions in this regard emanate, in part, from
understandable concern that confusion about when the time for filing a notice of appeal
begins to run could unfairly penalize defendants despite the diligent efforts of their
attorneys. Fortunately, this is an area in which defendants have strong protection.
Rule 32.1(f), Ariz. R. Crim. P., provides that defendants are entitled to post-conviction
relief upon a showing that they were not at fault for the failure to file a timely notice of
appeal. For instance, in the notice of appeal Whitman’s attorney filed on December 28,
counsel referred to the judgment of guilt and sentence imposed “on December 20.”
Counsel most likely believed the notice was timely. Instead, there was likely a clerical
34
error or miscommunication.11 On the present record, Rule 32.1(f) would provide relief
that would protect Whitman from unfair prejudice arising from a routine mistake.
¶62 Finally, while I do not doubt for a moment my colleagues’ intent to remedy
what they conclude are “confusing and seemingly contradictory rules and forms,” supra
¶ 20, today’s holding will cause more problems for defense attorneys and their clients. A
twenty-day deadline that runs from the time of sentencing is clear, while also protecting
defendants’ rights. With the mandatory presence of defendant and his attorney at
sentencing, the court informs everyone (including victims and observers) by oral
pronouncement and in writing that defendant has twenty days from that date to file a
notice of appeal. Ariz. R. Crim. P. 26.9, 26.11, and 41, Form 23. An especially diligent
attorney can provide the exact date to defendant while in the courtroom.
¶63 Under the majority’s holding, however, simplicity is lost. For any case in
which the defendant does not make an immediate decision to appeal, defense counsel is
burdened with unnecessary post-sentencing tasks. He or she must closely monitor the
filings to determine the exact date the sentencing minute entry is filed. Counsel is then
required to give written notification of the deadline to a client who is typically in transit
between penal institutions. The client in turn must communicate to defense counsel
whether he or she wishes to appeal. In a high-volume criminal defense practice, this type
11
Although not dispositive of the legal issue here, we should not ignore the facts of
this case. After the state challenged jurisdiction based on the timeliness of the notice of
appeal, Whitman agreed that Rule 31.3 “provides for only a 20-day window” from
sentencing and requested an additional five calendar days based on the mailing rule.
Whitman has never argued he was confused by the meaning of entry of judgment and
sentence. More likely, counsel mistakenly believed sentencing had occurred on
December 20.
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of complexity does not benefit attorneys or their clients. It also conflicts with a primary
purpose of the rules “to secure simplicity in procedure.” See Ariz. R. Crim. P. 1.2.
Conclusion
¶64 Since 1973, defendants have been told by trial judges, and in a written
form, that they have twenty days from sentencing to file a notice of appeal; otherwise,
they will lose the right to appeal. I believe this is the proper procedure based on a simple
reading of an unambiguous rule. I would dismiss the appeal for lack of jurisdiction,
which would allow Whitman to confer with counsel regarding post-conviction relief.
/s/ Michael Miller
MICHAEL MILLER, Judge
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